LAW AND HISTORY

November, 1993

27 Loy. L.A. L. Rev. 193

Author

John Phillip Reid *

Excerpt

I. Introduction

A venture into cross-disciplinary legal studies may be a mark of scholarly sophistication for the law academic, but it does not do to assume the benefits without understanding the risks. Serious problems result from the crossing of disciplines. Take the crossing of history with law: It is a mixture containing more snares than rewards, as it risks confusing rules of evidence basic to one profession with canons of proof sacrosanct to another.

True, there are those who feel the mix takes well. For example, consider Alfred H. Kelly, a scholar of history well versed in constitutional law but who apparently had only a layman's knowledge of nonconstitutional law. He thought the connection of methodology between law and history not only easy to locate, but a fairly close match. 1 They not only shared intellectual substance, he explained, but the materials used in each are also the same. 2 Writing in a legal publication in 1965, Kelly stated that

there is, after all, a fairly close relationship between the day-to-day methodology of the judicial process and that of historical scholarship. When a court ascertains the nature of the law to be applied to a case through an examination of a stream of judicial precedent, after the time-honored Anglo-American technique, it plays the role of historian. A historian might wellsay that in this process the court goes to the "primary sources." 3

The implication - one that is shared by lawyers perhaps even more than by historians - is ...

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